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Wednesday, August 27, 2014         

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David Henkin

The lawyer for Earthjustice won a long campaign to stop the Army's live-fire training in Makua Valley

By Dave Koga

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David Henkin knew early in life that he wanted to protect the environment. As a child in Los Angeles, he would pick up pieces of trash during walks with his mother and wonder aloud how people could be so thoughtless.

"The interest got more sophisticated after that," he says, "but I think for a lot of people it starts with just looking around and seeing how beautiful the world is and what a gift we've been given ... and understanding that we all have an obligation to stewardship."

At Yale Law School, Henkin naturally gravitated toward environmental law, which would give him "the chance to stand up for the Earth."

"What drew me in was not just the work — the opportunity to make the world cleaner, better, safer — but that the clients are never in it for money or personal gain," he says. "They're in it because they have a passion for protecting resources and places for future generations. And so that's something I've always been able to get up in the morning for ... to keep my energy up and keep doing it year in and year out."

Since arriving in Hawaii in 1995 to work for Earthjustice, Henkin has filed numerous cases on issues ranging from protection of the endangered Hawaiian crow to the upgrading of Honolulu's wastewater treatment facilities.

He is best known for representing the community group Malama Makua, which has pressed the U.S. Army since 1998 to prepare environmental impact statements on its training in Makua Valley, home to more than 100 archaeological sites and 50 endangered plant and animal species.

Two weeks ago, the Army's commander in the Pacific, Lt. Gen. Benjamin Mixon, announced that "in an effort to balance our relations with the community and the requirements that we have for training," the Army had abandoned plans to resume live-fire training in Makua Valley and would conduct future exercises at Schofield Barracks and the Pohakuloa Training Area on the Big Island.

Henkin is pleased with the Army's decision, which he says was too long in coming. But he says the ultimate goal remains the return of the valley to the state — and it may be a while before that issue is resolved.

QUESTION: Now that the Army is saying there will be no more live-fire training in Makua, what's your sense of what's going to happen next?

ANSWER: What's important to understand is that the Army hasn't done any live-fire training in Makua since 1998 (when Malama Makua filed suit after a series of munitions-sparked brushfires). In the last 12 years, they've fired rounds in only 26 exercises during a three-year period. So actually, out of the last 12 years, there have been nine years without a single shot fired. And as you know, during that period of time, particularly from 2001 onward, the Army has been deploying constantly to combat theaters and they've been training their soldiers elsewhere. So what Gen. Mixon said is really just an acknowledgment of reality — which is that not only can the Army get by without live-fire training at Makua, it has.

And so the Army and the people of Hawaii have to ask themselves: Is it worth sacrificing the cultural sites and the endangered species? Is it worth training within three miles of heavily populated areas? Is it worth training across the street from areas where people play with their children and gather food from the ocean when there are other options?

The first lawsuit was filed in 1998 ... and in 2000 and then again in 2001, the Army came out with a very short document called an environmental assessment where they said there was no potential for training at Makua to cause any significant harm to the environment. This, against a history in which cultural sites have been destroyed and endangered species have been burned, just didn't pass the smile test. And the judge agreed with us that they needed to do the full-blown environmental impact statement ...

To me, this case is a perfect illustration of what Congress intended when it made ... the environmental review law. It is, "Let's get the facts on the table; let's not do it based on rhetoric and supposition. Let's get the facts on the table and make a good decision." And we believe the decision Gen. Mixon announced last week is not only good for us, but good for the Army and good for the people of the state of Hawaii, because for so long the dialogue has been readiness versus the environment. And now we realize that you can have both. You can protect sacred places, special places, and you can also do the training.

Q: What do you think was driving the Army's reluctance to do any kind of complete study all these years?

A: We've heard that the Army had a fear — almost like the old domino theory — that if the Army gave in at Makua, then the activists would be at the gates and they would try to push them out of Schofield and out of Pohakuloa. For Earthjustice and Malama Makua, the issue has always been Makua and whether this is an appropriate place to train. I think there were some concerns about (the Army) saving face. Maybe along the way some of the generals (who commanded Pacific forces) believed their rhetoric.

Q: What are Malama Makua's thoughts on the Army's plan to now turn Makua into a roadside-bomb training site?

A: Our clients' belief, and my personal belief, is that Makua is a very sacred, special place that just is not appropriate for training. I don't think any rational military trainer in the 21st century would look around the state of Hawaii and say, "I'm going to train at Makua" if they hadn't been there since World War II. I think it's a legacy of past decisions made in a different age, with different knowledge and different sensibilities.

So I guess the short answer is there are other places where they can do this kind of training. To do the convoy exercise you basically need a road. There are plenty of roads on Army land at Schofield and Pohakuloa.

Now, the specifics of what's being proposed are pretty much unknown at this point. My guess is that it is substantially less of an impact on the cultural sites and the endangered species than what they had been doing before, but to get back to my theme, information is vital and there hasn't really been disclosure. I can just say, based on what I do know, that there are other places they can do it and Makua really ought to be returned to the people of the state of Hawaii for appropriate cultural and civilian use.

Q: Are you confident of that happening?

A: Before (the government's 65-year lease for Makua expires in) 2029? My approach to the type of work that I do is that you have to be optimistic and idealistic, because that's what keeps you going. But at the same time, you have to be realistic and keep your expectations low because that's what keeps you from becoming discouraged. When you're doing public interest environmental work, it's always a long-term battle, it's always an uphill battle, it's never really over. So I do envision a return of Makua to the people of Hawaii as soon as possible. But I don't expect it. I hope to be pleasantly surprised.

You have to remember that when Makua was originally taken for training in 1941, the families who lived there, the families who were evicted, were told that their land would be returned six months after the end of hostilities. They're still waiting. So really, Makua has a history of very profound broken promises to the individual families and in a larger context to the people of Hawaii.

Q: Does Earthjustice have any problem with live-fire training at Pohakuloa?

A: My understanding is that the Army has started an environmental review process, where from the beginning they've admitted the need for an environmental impact statement — so there's been progress over the years — and that they're doing a review of locations of alternate training facilities to Pohakuloa. It is hard to find a place in the state of Hawaii to do live-fire military training that is not going to cause damage. It is by its very nature a destructive activity. You're practicing war.

Am I OK with them training at Pohakuloa? That's not really the lens that I look at it through. I look at it through this lens: If the Army is going to do a certain type of training, where can they do it with the least impact?

Q: As far as returning Makua to Hawaii and having it open to civilians again, do you have a sense of how much unexploded ordnance might still be there and how much clean-up it would take?

A: Well, one of the things we were able to secure through a settlement agreement in 2001, is an obligation for the Army now to be clearing unexploded ordnance from the valley. Normally, the Army has a policy that live training ranges don't get cleaned up until they're actually closed. But as part of our settlement we said, "We don't want you to wait until you're ready to leave, we want you to start cleaning up now." So there have been 1,000-pound bombs, 250-pound bombs, a lot of heavy ordnance that has already been pulled out of there. Now they tend to find a mortar round here, a mortar round there.

Compared to Kahoolawe, the entire military reservation's about 4,100 acres. The flat lands where people would want to carry out cultural activities, maybe start farming again, is a much, much smaller area. So I think it would be manageable.






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